Re-Opening Agency Offices – Legal Issues

Last week I participated in a webinar put on by the Independent Insurance Agents of Georgia (“IIAG”) that addressed the many issues that need to be considered by insurance agencies before they re-open their offices.  A link to a recording of that webinar should appear on the IIAG’s Coronavirus Member Resources webpage in the near future.   In the meantime, that webpage has numerous links to all kinds of information about Coronavirus related issues.  In the webinar,  I spoke about the legal issues that should be considered by agency owners in deciding whether and when to re-open their offices.  A summary of my presentation follows.

AGENCY PROTECTIVE ACTIONS

To limit its liability exposure in re-opening its offices, an agency must do two things.  First, it must comply with all government mandated requirements.  Second, it must go above and beyond complying with any such requirements and take whatever other actions are appropriate for a reasonable person acting under the same circumstances who wants to protect the health and safety of their employees.  In other words, an agency must not act negligently.

GOVERNMENT MANDATED ACTIONS

In Georgia, at this time, there is only one set of government mandated requirements with which agency owners must comply.  They are contained in the Executive Orders issued by Governor Kemp.  To date, Governor Kemp has issued three Executive Orders that deal with the re-opening of businesses; the first of which was issued on April 23, 2020 and the latest on May 28, 2020 shortly after the conclusion of the IIAG webinar.  Fortunately, from the perspective of insurance agencies, the latest order contains only one significant difference from the first two, which will be discussed later.

All the Executive Orders divide businesses into one of three types: (i) businesses that are required to remain closed, (ii) businesses that constitute Critical Infrastructure, and (iii) all other businesses.   Insurance Agencies are in the category of Critical Infrastructure.  Such businesses are required to “implement measures which mitigate the exposure and spread of Covid-19“ and are given a list of now 16 different things that should be done “to the maximum extent practicable“.

For insurance agencies, the required actions include (i) screening workers for signs of Covid-19 illness. (ii) requiring workers who exhibit such signs to go home or not report to work to begin with and to seek medical attention,  (iii) permitting workers to take breaks and lunch outside the workplace or in their office or personal workspace or other areas where a minimum 6 foot distance can be maintained, (iv) allowing workers to telework or to work in staggered shifts whenever possible, (v) holding all meetings virtually and delivering services remotely whenever possible, (vi) prohibiting handshaking and other unnecessary person to person contact in the workplace, and (vii) placing notices that encourage hand hygiene at the entrance to the workplace and in other areas where they are likely to be seen.   The one difference between the most recent Executive Order and the first two orders is that now up to 25 people can be allowed in an office location without having to maintain a minimum 6 foot distance between them.  That is up from 10 people.

In addition to the above mandatory actions, Governor Kemp’s Executive Order states that all businesses “should”, if practicable: (i) provide personal protective equipment as available and appropriate to the function and location of the worker in the workplace, (ii) provide disinfectant and sanitation products for workers’ use in cleaning their workspace and equipment, and (iii) increase the physical space between worksites within the workplace to at least 6 feet.

Violation of any of the requirements contained in Governor Kemp’s latest Executive Order is a misdemeanor and two or more violations can result in the closure of the agency’s business.  This order has an expiration date of June 15, 2020 at 11:59 p.m.  It is likely that sometime before that date and time another Executive Order will be issued.  However, even if the current Order is allowed to expire with no successor, agencies would be wise to continue to follow its requirements as proof of their taking all reasonable precautions to protect their employees.  In addition, if that happens, local governments could enact ordinances governing the conduct of business that would have to be followed by agencies located in that jurisdiction.

GOVERNMENT SUGGESTED ACTIONS

With respect to other actions that should be taken to avoid a claim of negligence by an agency that re-opens its offices, there are two sources of guidance.  Both the Occupational Safety and Health Administration (“OSHA”) and the Centers for Disease Control and Prevention (“CDC”)  created documents that contain suggested actions to be taken to best protect a business’ workers and customers.  The OSHA guidance is a 35 page brochure that makes for some difficult reading.

The CDC has created a much easier to follow decision tree chart that takes employers through the steps that should be taken in deciding whether to re-open their places of business.  These steps include most of the actions found in Governor Kemp’s Executive Orders and add on the creation of a monitoring plan and a plan for what to do if an employee exhibits symptoms of Covid-19 infection once the business is back up and running.  CDC has also created a FAQ document that explains how its suggested actions apply to specific situations.

For an explanation of how the Georgia and federal employment laws apply to the actions required and suggested to be taken by agencies who seek to re-open their offices, see my earlier blog post on Testing Employees for Covid-19.

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